Uncensored clergy prayers should be allowed before town meetings, 23 states argue in SCOTUS brief

The attorneys general of Texas and Indiana have filed an amicus brief (PDF) with the U.S. Supreme Court arguing that prayers by mostly Christian clergy members before legislative meetings should not be considered a violation of the establishment clause.

The U.S. Supreme Court granted cert in Town of Greece v. Galloway in May, SCOTUSblog reported at the time. The suit by two residents of the upstate New York community of Greece—one Jewish, the other atheist—had claimed that the prayers by predominantly Christian clergy members before town board meetings made them feel marginalized, the Christian News Network reports. The women are represented by the American Civil Liberties Union.

The Texas and Indiana amicus brief was joined by 21 other attorneys general, report the Associated Press, the Christian News Network and a press release. “The establishment clause does not require officials either to edit historically permissible religious expressions or scrub them from the public square,” the brief argues.

The amicus brief cites a history of legislative prayer and the American culture of religious accommodation. According to the brief, the court should consider using the case as an opportunity to require “a showing of religious coercion as a touchstone for proving any type of unlawful religious establishment.” The court could also use the case to rule that the endorsement test of Lemon v. Kurtzman does not apply to legislative prayer practices, the brief says.

The New York City-based 2nd U.S. Circuit Court of Appeals had ruled that the prayers in Greece violated the establishment clause because they conveyed “to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion,” according to the SCOTUSblog account.

The U.S. Supreme Court last considered the issue of legislative prayers in the 1983 decision Marsh v. Chambers, when it upheld opening prayers before the Nebraska legislature. The court has since ruled in two cases that prayers are invalid when they appear to be sponsored by public school officials, SCOTUSblog says.